Posted
by
Unknown Lamer
on Tuesday August 20, 2013 @04:09AM
from the but-not-you dept.

NewYorkCountryLawyer writes "Can it be true? The US government claims it really wants to hear from us on the subject of how copyright law needs to be modified to accommodate the developing technology of the digital age? I don't know, but the US Patent & Trademark Office (which btw has nothing to do with administering copyright) says 'we really want to hear from you' and the Department of Commerce Internet Policy Task Force wrote a 122-page paper (PDF) on the subject, so they must really mean it, right? But I couldn't find the address to which to send my comments, so maybe that was an oversight on their part."

I completely agree except for a little bit with #1. I wouldn't propose to eliminate fines for unauthorized sharing, but noncommercial unauthorized sharing should have fines limited to a small multiple of the retail value of the works. For example, if you share out a thousand songs, you can currently be sued for $750,000 - $150,000,000. That's enough to permanently bankrupt you for life. If you limited it to ten times the retail value of a digital song ($0.99), then your fine would be $9,900. That's still a penalty that will hurt, but not one that will bankrupt the average person for life. (Just make it difficult financially for a bit.) It would serve as an incentive NOT to engage in unauthorized file sharing (the purpose of the fines) without ruining people financially (NOT the purpose) or giving companies a huge weapon to threaten you with if you don't settle on THEIR terms. You can keep the $750 - $150,000 fines for commercial infringement (e.g. companies selling bootleg DVDs of movies).

4) Commercial Piracy should attract large fines, however small personal acts of piracy should be penalized in the region of a few thousand dollars TOTAL, not several tens of thousands for each work. As an example, Jammie Thomas was definitely guilty, but a maximum fine of about $5,000 would be seen as far more reasonable especially as she made no significant financial gain from the act.

Interestingly, this is already in copyright law. It's just being misapplied.

First, as a premise, when given a range, juries (or anyone) tends to default to approximately the geometric mean of the range. For example, if a crime carries a sentence of 1 to 20 years, you might expect that people would default to around 10 years, but they don't. After all, if 1 year is a possible sentence, then 10 is an order of magnitude larger! And the top of the range at 20 is only just double that. Clearly 10 is too high. Instead, juries will default to around 4-6 years.
Well, it's the same thing in monetary damages: given a range (say, $750-$150,000, as in the "willful infringement" tier of copyright statutory damages), the geometric mean is $10,606. Tenenbaum was dinged for $22k per song. Thomas got hit for $9,250 per song. So, pretty close to the geometric mean.

But wait, is that the right range? The statute says up to $150k for willful infringement, which the RIAA has defined as any infringement that's intentional (as opposed to accidental copying?). Their argument is that, if you've ever seen a copyright notice, and you then distribute a copyrighted work, that's willful, 'cause you knew it was wrong.
But that's not what Congress intended. If you go back to the original House comments, it appears that they intended "Willful" to mean "malicious, or for commercial purposes" as in the trademark and patent acts. Like, if you sneak into your author neighbor's house and steal his manuscript and publish it to destroy his career, even if you didn't do it to make money, that's pretty evil, and you should be responsible for enhanced damages.

So, the non-enhanced range is $750-$30,000. The geometric mean of this is $4700. Your suggestion - "about $5000". QED.

Hence, we need to fix that interpretation of "willful", not go try to rewrite the copyright act, which can be done by arguing this issue in court and persuading judges, rather than fighting with well-monied RIAA lobbyists for Senators' favor.